Both Congress and private businesses can stop President Barack Obama’s climate non-treaty that Secretary John Kerry emptily announced from Paris this week.
Breitbart News has already reported on the agreement that was approved by leaders of more than 180 nations as a partial fix for “manmade global warming.” Critics of the leaders’ agreement are alarmed that Obama is portraying it as a formal, enforceable treaty, even though it has not been ratified by the U.S. Senate.
So who will win this is-it-or-isn’t-it-a-treaty fight?
Article II of the U.S. Constitution requires that all treaties must be signed by the president, then ratified by two-thirds of the U.S. Senate (which would currently be 67 out of 100 senators). Article VI of the Constitution provides that any properly ratified treaty carries the same authority as a federal law passed by Congress.
Not a single one of the provisions in this Paris agreement are legally binding.
Each provision is either not a legal obligation at all, or is an obligation that was illegally created, and thus both invalid and unenforceable.
One way that Obama is trying to evade the Senate is by ensuring that key provisions in the agreement say “should” instead of “shall.” Any document that says a member nation “shall” do something thereby imposes a legal obligation, versus a document that says “should” thereby announces merely a goal or aspiration. So any provision including “should” is not the law, and the United States can ignore it entirely.
Any provision—including mandatory language, like “shall”—is not binding.
Regardless, until the agreement has been ratified by the Senate, the provisions are not law at all.
An agreement signed by the president isn’t a treaty until it goes through that process. But Obama knows his agreement is quite unpopular and won’t get through the Senate. So he’s trying to evade the Senate by softening some of the agreement’s language from the hard, clear, mandatory language of “shall” to the aspirational, vague and soft language of “should.”
In the future, once the agreement has been around for a while, he and his progressive allies will start pretending that today’s “should” really, really means “shall.” Then they’ll try to use federal regulators to impose the agreement piece-by-piece on Americans.
But the plain language of the deal says “should,” not “shall.” So many of the agreement’s provisions are not binding on anyone.
The Paris agreement is not self-executing.
Most treaties are not self-executing — and have no force of law unless the member nation also passes statutes — not just regulations — to carry them into effect.
Showcasing how important this distinction is, when Ted Cruz was a practicing attorney in 2008, he managed to convince the U.S. Supreme Court in Medellin v. Texas to knock out legal obligations regarding Mexicans sentenced to death in Texas, on the grounds that the treaty imposing the obligations was not self-executing. Not only did Cruz defeat the United Nations in that case, he also defeated President George W. Bush’s lawyer. And the Supreme Court’s decision siding with Cruz and the state of Texas was 6-3 (which included a liberal justice), not 5-4.
What Obama can do next and how to stop him
First, he could try to call it “an executive agreement.”
Bill Clinton did that with NAFTA, and then got the House and Senate to both vote in favor of it by a simple majority. That process made the supposed treaty look like normal legislation, having been passed by the House and Senate, and signed by the president.
Presidents sometimes make executive agreements by themselves, and the courts have never invalidated an executive agreement for exceeding a president’s inherent power to make foreign policy. However, if the Treaty Clause of the Constitution has any meaning at all (and it is a major rule of legal interpretation that every single word of the Constitution is presumed to have legal meaning), then there must be limits of what a president can do without the Senate.
In order to make it clear that this agreement should not be regarded as a real treaty, the Senate—or preferably the entire Congress—should pass a resolution rejecting it.
Such a resolution cannot carry the force of law, unless it is either signed by the president, or, if the president vetoes it, Congress then overrides that veto by a two-thirds vote in both chambers. Since a treaty requires 67 senators for ratification, no more than 33 can oppose a successfully ratified treaty. A resolution with at least 51 senators rejecting the agreement should provide persuasive evidence to a court in a legal challenge that this agreement should never be construed as legally binding.
Then the Senate should pass a follow-up resolution to authorize one of its senators to file a federal lawsuit on behalf of the Senate. The lawsuit would ask the courts to declare the agreement invalid. Or alternatively, any private corporation that is directly harmed by the agreement could sue to get a court to invalidate it.
Second, Obama can try to convince U.S. courts to accept this agreement as another piece of valid ‘customary international law,’ and then start issuing federal regulations to enforce its terms.
That’s defined as the result of “a general and consistent practice of [nations] followed by them from a sense of legal obligation.” The Supreme Court has held that customary international law can be binding on the United States.
This could be what Obama is seeking to do. An agreement with almost every nation on earth agreeing to it (at least 186 countries here) may be deemed customary international law by federal judges, who would make it binding on Americans even without approval by the Senate. Some legal scholars, and writings by some Framers of the Constitution (such as Alexander Hamilton), support this concept, and some Supreme Court cases seem to say the same thing.
But customary international law can also be defeated. In the 1900 case The Paquete Habana, the Supreme Court declared that Congress can supersede it by passing a statute, and even suggested that a president could take executive action to nullify it.
In essence, under this theory, customary international law is just a geopolitical form of shaming. It only has whatever power we assume it has.
The way to beat something of that nature is straightforward: unapologetically ignore it. Beyond that, appoint Supreme Court justices who hold that only the forms of law recognized in Article VI’s Supremacy Clause—meaning the Constitution’s provisions, domestic federal statutes, and Senate-ratified treaties—are binding on this nation.
In conclusion, the Paris agreement is not legally binding.
Whatever the Paris agreement is called, it does not carry the force of law.
If Obama and his supporters choose to extol its virtues and cite it as a foreign-policy accomplishment, they can try to do so. But they cannot try to force its toothless provisions on American citizens and their companies, and the Constitution’s guardians — not just U.S. judges, but also all federal legislators and officers sworn to support and defend the Constitution — must not allow them to do so.
Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.